You ask whether certain information is subject to required public disclosure under chapter
552 of the Government Code. Your request was assigned ID# 135627.

The Bexar County Criminal District Attorney's Office (the "district attorney") received
a request for "copies of any and all directives, memoranda, letters, e-mails or other
records, including written memoranda of telephone conversations," maintained by the
district attorney from 1973 to the present in relation to a specific individual, including
all records related to the individual's involvement in a particular criminal case. In response
to this request, you have submitted a copy of the district attorney's case file for Cause
Number 83-CR-1099.(1) You claim that the submitted case file is excepted from disclosure under sections 552.108 and 552.111 of the Government Code. We have considered the exceptions you claim and have reviewed the information at issue.

Initially, we address the requestor's argument that the district attorney did not timely submit
its request for a ruling; so that the requested information is presumed public and must be
released. See Gov't Code § 552.302 (providing that if governmental body does not timely
request a ruling, requested information must be released unless there is a compelling reason
to withhold); see also Gov't Code § 552.304 (providing that interested person may submit
written comments to attorney general stating why requested information should be released
or withheld). Section 552.301(b) provides that a governmental body must ask for an attorney
general's decision and state the exceptions that apply within a reasonable time but not later
than the tenth business day after the date of receiving the written request. In this instance,
you assert that the district attorney received the request for information on March 13, 2000.
However, the requestor argues and has submitted evidence that the district attorney actually
received the request on March 10, 2000. The district attorney submitted its request for a
ruling on March 22, 2000. In that request, you argue that the responsive information is
excepted from disclosure under section 552.111. Since March 22is within ten business days of both March 10 and March 13, we conclude that the district attorney timely submitted its
arguments under section 552.111. See Gov't Code 552.308 (stating that timeliness
requirement is met if document bears post office cancellation mark indicating that it was
deposited within specified time period). Therefore, we will address your arguments under
that exception.

However, the district attorney also submitted a supplemental brief to this office, postmarked
March 28, 2000, in which you argue that the requested information is also excepted from
public disclosure under section 552.108. March 28 is not within ten business days of either
March 10 or March 13. Consequently, you failed to timely raise section 552.108 within the
ten business day deadline imposed by section 552.301(b). Since section 552.108 is a
"permissive exception," which grants to the governmental body the discretion to either
release or withhold the information, it is waived by a governmental body's failure to timely
raise the exception. See Open Records Decision No. 177 (1977); see also Open Records Decision No. 586 (1991). Accordingly, we conclude that the district attorney has waived
the protection of section 552.108 in this instance and, therefore, we do not address your
argument under that exception.

You contend that all the information submitted to this office for review is protected as
attorney work product as encompassed by section 552.111. In Open Records Decision
No. 647 (1996), this office held that a governmental body may withhold information
under section 552.111 if the governmental body can show 1) that the information was created
for civil trial or in anticipation of civil litigation under the test articulated in National Tank
v. Brotherton, 851 S.W.2d 193 (Tex. 1993), or after a civil lawsuit is filed, and (2) that the
work product consists of or tends to reveal an attorney's "mental processes, conclusions, and
legal theories." Open Records Decision No. 647 at 5 (1996) .

The work product doctrine is applicable to litigation files in criminal as well as civil
litigation. Curry v. Walker, 873 S.W.2d 379, 381 (Tex. 1994) (citing United States v.
Nobles, 422 U.S. 225, 236 (1975)). In Curry, the Texas Supreme Court held that a request for a district attorney's "entire file" was "too broad" and, citing National Union Fire
Insurance Co. v. Valdez, 863 S.W.2d 458, 460 (Tex. 1993), held that "the decision as to what
to include in [the file] necessarily reveals the attorney's thought processes concerning the
prosecution or defense of the case." 873 S.W.2d at 380.(2) Accordingly, if a requestor asks for the district attorney's work file regarding particular litigation, we believe that such a request may be denied in its entirety based on the court's holding in Curry. Id.; see also Open Records Decision No. 647 at 5 (1996).

In this instance, you assert that the request is essentially asking for the district attorney's
entire prosecutorial file concerning the individual named in the request, and therefore, the
request may be denied in its entirety. Because the pending request encompasses the district
attorney's entire litigation file, we conclude that the submitted documents may be withheld
pursuant to section 552.111 of the Government Code as attorney work product.(3)

Finally, we address the requestor's argument that, regardless of the applicability of the
claimed exceptions, as the authorized representative of the individual specified in the request,
he has a special right of access to the submitted information under section 552.023 of the
Government Code. Section 552.023 provides, in pertinent part:

(a) A person or a person's authorized representative has a special
right of access, beyond the right of the general public, to information
held by a governmental body that relates to the person and that is
protected from public disclosure by laws intended to protect that
person's privacy interests.

(b) A governmental body may not deny access to information to the
person, or the person's representative, to whom the information
relates on the grounds that the information is considered confidential
by privacy principles under this chapter but may assert as grounds
for denial of access other provisions of this chapter or other law that
are not intended to protect the person's privacy interests.

Gov't Code §552.023 (Emphasis added.). In this instance, the district attorney asserts, and
we agree, that the submitted information is excepted from disclosure under section 552.111.
Section 552.111 is an exception to public disclosure designed to protect a governmental
body's interest, not an individual's privacy interest. See Open Records Decision No. 470 at
2 (1987). Accordingly, we find that the requestor does not have a "special right of access"
to the submitted information based on section 552.023, and the information may be
withheld.(4)

This letter ruling is limited to the particular records at issue in this request and limited to the
facts as presented to us; therefore, this ruling must not be relied upon as a previous
determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the
governmental body and of the requestor. For example, governmental bodies are prohibited
from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the
governmental body wants to challenge this ruling, the governmental body must appeal by
filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full
benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id.
§ 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the
governmental body does not comply with it, then both the requestor and the attorney
general have the right to file suit against the governmental body to enforce this ruling.
Id. § 552.321(a).

If this ruling requires the governmental body to release all or part of the requested
information, the governmental body is responsible for taking the next step. Based on the
statute, the attorney general expects that, within 10 calendar days of this ruling, the
governmental body will do one of the following three things: 1) release the public records;
2) notify the requestor of the exact day, time, and place that copies of the records will be
provided or that the records can be inspected; or 3) notify the requestor of the governmental
body's intent to challenge this letter ruling in court. If the governmental body fails to do
one of these three things within 10 calendar days of this ruling, then the requestor
should report that failure to the attorney general's Open Government Hotline, toll free, at
877/673-6839. The requestor may also file a complaint with the district or county attorney.
Id. § 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the
requested information, the requestor can appeal that decision by suing the governmental
body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments
about this ruling, they may contact our office. Although there is no statutory deadline for
contacting us, the attorney general prefers to receive any comments within 10 calendar days
of the date of this ruling.

1. We presume that to the extent that the district attorney maintains responsive documents that are independent of the case file, those documents have been released to the requestor. See Gov't Code §§ 552.301,.302.

2. We note, however, that the court in National Union also concluded that a specific document is not automatically considered to be privileged simply because it is part of an attorney's file. 863 S.W.2d 458, 461 (Tex. 1993). The court held that an opposing party may request specific documents or categories of documents that are relevant to the case without implicating the attorney work product privilege. Id.;Open Records Decision No. 647 at 5 (1996).

3. We note that the applicability of work product privilege does not depend the outcome of the underlying litigation.

4. You may choose, however, to release all or part of the information that is not otherwise confidential by law. Gov't Code § 552.007.